June 28, 2013 – In a case alleging that paint containing benzene contributed to the death of an interior painter at Chrysler’s American Motors, a federal appeals court has upheld the use of expert testimony to explain how exposure caused the man’s leukemia.

An oncologist testified that benzene generally causes the type of leukemia that killed Donald Schultz, and both smoking and exposure to benzene were significant causes in the development of Schultz’s diagnosed acute myeloid leukemia (AML).

Two defendant paint companies – Azko Nobel Paints and Durako Paint and Color Corp. – challenged the testimony as unreliable. Azko introduced its own expert who said Schultz’s exposure to benzene was too minimal to be a substantial factor.

The paint producers moved for summary judgment, and a federal district court in Wisconsin granted the motions after tossing the oncologist’s testimony.

In Estate of Schultz v. Azko Nobel Paints, No. 12-1902, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit, applying Wisconsin law, said the lower court erred in excluding the expert testimony, meaning litigation will continue against Azko.

In tossing the testimony, the district court emphasized that the oncologist’s conclusions differed from a competing study by an opposing expert. But the panel said that choosing between the studies was not a proper gatekeeping function for the court.

“Both experts were entitled to present their views, and the merits and demerits of each study can be explored at trial,” wrote Judge Diane Wood.

The district court also found the oncologist’s opinions to be unreliable, the panel explained, by suggesting that he failed to rule out other causes of the disease. However, the panel noted that Wisconsin product liability law applies.

In Wisconsin, strict product liability cases only require plaintiffs to show the product was a substantial factor in causing the plaintiff’s injuries, the panel explained.

“Schultz was not required to demonstrate that benzene exposure was the sole cause of his disease, so long as he showed that benzene contributed substantially to the disease’s development or significantly increased his risk of developing AML,” wrote Judge Wood, while noting the doctor did consider alternative causes.

The case will go on for Azko, but the court granted summary judgment to Durako, finding insufficient evidence to conclude that Schultz was exposed to a Durako product.